Kershaw v R [2009] NSWCCA 19

Kershaw v R [2009] NSWCCA 19

Because the sentencing judge was misinformed that the applicable standard non-parole period was seven years rather than five years and expressly used that inflated figure as a benchmark, the applicant demonstrated material error; had the correct figure been used, the sentence would have been lower to some extent,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 February 2009
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Severity of Sentence in the NSW Court of Criminal Appeal
Outcome
Application for leave to appeal against sentence granted; appeal allowed; District Court sentence quashed; appellant resentenced.
Legal Topics
['aggravated Breaking and Entering' 'standard Non Parole Period' 'sentencing Error' 'resentence' 'special Circumstances']
['criminal Law and Procedure' 'sentencing'] ['aggravated Breaking and Entering' 'standard Non Parole Period' 'sentencing Error' 'resentence' 'special Circumstances']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Severity of Sentence in the NSW Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by misdirecting himself as to the correct standard non-parole period for the offence.' 'Whether the sentencing judge erred by using seven years rather than five years as a benchmark in arriving at the sentence.' 'Whether the erroneous reference to an inflated standard non-parole period constituted material error requiring a reduction of sentence.' 'Whether special circumstances justified varying the statutory proportion between the non-parole period and total sentence on resentence.']

Ratio Decidendi

Because the sentencing judge was misinformed that the applicable standard non-parole period was seven years rather than five years and expressly used that inflated figure as a benchmark, the applicant demonstrated material error; had the correct figure been used, the sentence would have been lower to some extent, requiring the sentence to be quashed and reduced.

Court Disposition

Application for leave to appeal against sentence granted; appeal allowed; District Court sentence quashed; appellant resentenced.

Orders

  • ['Application for leave to appeal against sentence granted and appeal allowed.' 'Sentence imposed in the District Court quashed.' 'In lieu thereof the applicant be sentenced to imprisonment consisting of a non-parole period of two years commencing on 31 August 2007 and expiring on 30 August 2009 together with a...